Kurbanova v. United States, 10 CV 1328 (RJD) (CAP)

CourtUnited States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
Writing for the CourtRAYMOND J. DEARIE
Decision Date26 September 2011
Docket Number10 CV 1328 (RJD) (CAP)


10 CV 1328 (RJD) (CAP)


Dated: September 26, 2011


DEARIE, District Judge.

In July 2009, plaintiff Nilufar Kurbanova filed a claim for medical malpractice in New York Supreme Court, Kings County, against defendant Dr. Irina Karban. In March 2010, the United States of America removed the action pursuant to the Federal Tort Claims Act ("FTCA") and moved to dismiss the complaint with prejudice on the ground that plaintiff has not exhausted her administrative remedies, as required by statute, and that she can no longer do so within the time allowed.

Following a prolonged, unannounced absence from the country and repeated, specific directives from the Court to respond to defendant's motion or otherwise to prosecute her case, by submissions dated July 25, 2011, plaintiff asks the Court both to furnish her with counsel and to grant her more time to investigate her claim. These requests are denied and plaintiff's complaint is dismissed for the failure to exhaust her administrative remedies. Because her complaint would have been timely under state law, however, plaintiff may proceed with her federal case if she complies with the instructions appearing in the final paragraph of this Memorandum and Order.

I. Background

In ruling on defendant's motion, the Court accepts the complaint's sparse allegations as true. Plaintiff alleges that Irina Karban, M.D., "undertook and agreed to render medical care to"

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plaintiff "beginning on or about February 6, 2007," but "was negligent, careless and reckless with regard to the care." (Compl., dkt. #1, at 6.) Plaintiff alleges also that Dr. Karban "failed to inform the plaintiff as to the exact nature and extent of plaintiff's condition and failed to inform the plaintiff as to the risks, complications, consequences and dangers of the care." (Id. at 8.) Plaintiff submits that, "[a]s a result," she "was injured." (Id. at 7.)

On March 24, 2010, the United States - contending that plaintiff's claim falls under the FTCA and that it alone is the proper defendant to the action - removed the action to federal court pursuant to 28 U.SC. § 2679(d)(2) and 42 U.S.C. § 233(c). (See Notice of Removal, dkt. #1, at 1-2.) On July 13, 2010, defendant served a copy of its motion to dismiss on plaintiff. (Dkt. #5.) Defendant certifies that, as of March 2010, a search of the Claims Office database "found no record of an administrative tort claim filed by Plaintiff . . . relating to Dr. Irina Karban." (Dkt. #24-2, at 1.) Thus, defendant argues that plaintiff's complaint should be dismissed with prejudice for a failure to exhaust her administrative remedies within the two years after her claim accrued, as required by 28 U.S.C. § 2401(b).

Despite the fact that her complaint was filed by counsel, plaintiff proceeds pro se. In a letter dated August 12, 2010, attorney Aleksander Vakarev notified the Court that his "office does not represent plaintiff in this matter," that he "filed a summons and complaint to merely preserve her claim" and that he advised her "to seek other counsel." (Dkt. #6.) At a status conference held on September 20, 2011, the Court (via Magistrate Judge Pollak) directed Mr. Vakarev to move to withdraw as counsel in the action. At the same conference, plaintiff's husband informed the Court that plaintiff was in Uzbekistan and would remain there until December. (Dkt. #8.) Months passed. On January 13, 2011, the Court ordered plaintiff to apprise the Court and Mr. Vakarev of her whereabouts within two weeks. Judge Pollak notified

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plaintiff that failure to respond would result in the "recommend[ation] that plaintiff's case be dismissed for a failure to prosecute." (Dkt. #11.)

By Order dated March 28, 2011, in the absence of any communication by or on behalf of plaintiff, Judge Pollak granted Mr. Vakarev's motion to withdraw.1 Judge Pollak added that if she did "not hear from plaintiff during the first week in April," then she would "recommend dismissal of plaintiff's case." (Dkt. #19, at 3.) On the afternoon of April 8, 2011, the last day on which to respond, plaintiff's husband called the Court to inquire whether the case could continue. One week later, on April 15, 2011, plaintiff submitted a handwritten letter informing the Court that she was back from Uzbekistan and that she wanted to proceed. (Dkt. #20.)

Proceed plaintiff did, but only in the loosest sense of the term. At a conference held on June 24, 2011, at which plaintiff appeared pro se along with her husband and a Court-furnished translator, the defendant was ordered to serve another copy of its motion papers - initially delivered one year earlier - on plaintiff and her husband. Defendant reiterated its view that plaintiff's claim is barred for her failure to exhaust administrative remedies in a timely fashion. At the conference, as memorialized in an Order dated July, 28, 2011, the Court directed plaintiff to respond with "all facts and allegations pertaining to her claim," including "all relevant dates upon which plaintiff is alleging malpractice and injury." (7/28/10 Order, dkt. #27, at 1.)

On July 25, 2011, plaintiff submitted an affirmation in opposition to the motion to dismiss. In the affirmation, which is difficult to construe, plaintiff states that Dr. Karban "admitted negligence." (Pl. Aff., dkt. #28, at 1.) Providing no dates, plaintiff alleges that she arrived at the hospital with "bleeding and [a] big pain in my womb" but that "Doctor Karban sent me home, because I didn't have insurance coverage." (Id. at 2.) Plaintiff alleges that she "stayed

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at home" and called Dr. Karban a "few time[s]" requesting advice, to which "she answered, just wait." (Id.) Plaintiff adds that Dr. Karban "knew what happened with me because she did [a] test and damage[d] my placenta." (Id. at 1.) After Staten Island University hospital doctors "rescued" plaintiff, her baby "was born in 25 weeks," but "[a]fter 4 month[s] he died." (Id. at 2.)

Plaintiff concludes that Dr. Karban "gave me hard time and suffering." (Id.) Thus, she wants to "investigate that case and punish Doctor Karban." (Id.) To help her accomplish this goal, plaintiff requests that the Court appoint her counsel. (Dkt. #29.) Plaintiff also requests "more time to proceed [with] my case against defendants." (Dkt. #30.)

II. Discussion

Given the complaint's denuded allegations and counsel's insistence that he never represented plaintiff, the Court evaluates all of plaintiff's submissions under the standards applicable to pro se pleadings. "A pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks omitted); see also Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). As a result, "'pro se submissions must be construed liberally and interpreted to raise the strongest arguments that they suggest.'" United States v. Akinrosotu, 637 F.3d 165, 167 (2d Cir. 2011) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).

The relaxed standard of review does not eliminate a pro se plaintiff's burden of pleading the necessary jurisdictional facts. "A plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists." Makarova v. United States, 201 F.3d 110, 113 (2000) (affirming dismissal of FTCA claim pursuant to Rule 12(b)(1) because "the district court lack[ed] the statutory or constitutional power to adjudicate it"). Furthermore, although a "court must take all facts alleged in the complaint as true and draw all reasonable

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inferences in favor of plaintiff," Nat'l Res. Def. Council v. Johnson, 461 F.3d 164, 171 (2d Cir. 2006) (internal quotation marks omitted), "'jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it,'" APWU v. Potter, 343 F.3d 619, 623 (2d Cir. 2003) (quoting Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998)).

A. Plaintiff's Claim is Against the United States

Notwithstanding that Dr. Karban allegedly treated plaintiff, the United States is the lone defendant against which plaintiff may assert her claim. "The FTCA waives the government's sovereign immunity [with respect to] 'claims against the United States, for money damages [on account of] personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment.'" Makarova, 201 F.3d at 113 (quoting 28 U.S.C. § 1346(b)). Plaintiff's claim fits within this definition.

Where a plaintiff files a state complaint for medical malpractice against a federal employee acting within the scope of employment, a pair of overlapping provisions authorizes the United States, upon the Attorney General's certification, to remove the action to federal court "at any time before trial" and to substitute itself as the defendant. See 28 U.S.C. § 2679(d)(2); 42 U.S.C. § 233(c). "[O]nce certification and removal are effected, exclusive competence to adjudicate the case resides in the federal court." Osborn v. Haley, 549 U.S. 225, 243 (2007). In such cases, an action against the United States is the only remedy, and "[a]ny other civil action or proceeding for money damages arising out of or relating...

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